Majority and Concurring Opinions filed =
January 22,=20
2008.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-00331-CV
____________
WILLIAM=20
DAVIS, =
Appellant
V.
JOHN Q. A.=20
WEBB, JR. M.D., =
Appellee
On Appeal from the =
215th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2006-64184
C O N C U=20
R R I N G O P I N I O N
Appellant=20
William Davis brought suit against John Q. A. Webb, Jr. M.D., for =
his=20
failure to provide appropriate post-operative treatment. =
This=20
failure led to serious medical problems for which Davis sought =
recovery,=20
but that recovery was barred because of a defect in his expert=20
report. Although timely served, the expert report did not =
reflect=20
the opinion of a Aphysician@ =
under=20
Texas Civil Practice and Remedies Code section 74.401. =
Instead,=20
Davis offered the expert opinion of an optometrist who was =
proficient and=20
trained in post-operative treatment and care. The trial =
court=20
dismissed the lawsuit with prejudice, and a majority of this court =
upheld=20
that dismissal, in accordance with the statutory requirements of =
Texas=20
Civil Practice and Remedies Code sections 74.351 and 74.401. =
Unfortunately, sections 74.351 and 74.401 were drafted, in all =
likelihood=20
inadvertently, in such a way as to create the occasional =
miscarriage of=20
justice. Hence, although I agree the majority opinion =
is in=20
accord with a plain reading of these sections, I cannot agree with =
the=20
application of this statute under these circumstances for two=20
reasons.
First,=20
when a physician is engaged in the work that only a physician may =
render,=20
the requirement that another physician opine concerning that =
treatment=20
logically follows. When, however, a physician fails to =
provide the=20
type of treatment he could have delegated to another, or the type =
of=20
treatment another often performs, this negligence should not be =
shielded=20
by his medical degree. In these situations, the physician is =
Awearing=20
another hat,@ and=20
the individuals who most often adorn that hat might be aptly =
trained to=20
opine as to the standard of care or causation. Such might be =
true=20
when a =
physician=20
performs medical care at the site of an accident where an EMT =
would be=20
best qualified to testify as to on-scene standards of care, or =
when a=20
physician refers an=20
injured patient to a physical therapist or chiropractor who, =
though not a=20
physician, may have greater training and experience in =
rehabilitation and=20
might be best qualified to opine as to causation in a review of=20
post-operative care. Such is arguably true, as in the =
present case,=20
where an optometrist is well-trained in post-operative treatment =
and is=20
often charged by an ophthalmologist to conduct this very =
care. When=20
a doctor provides the type of after-care that another professional =
could=20
provide, and does so negligently, his credentials should not force =
the=20
plaintiff to face a higher predicate to bringing suit. In =
fact, the=20
non-physician professional may be more equipped to perform the =
follow-up=20
treatment, and that non-physician may be the more appropriate =
person to=20
opine on the quality of treatment provided.
Second,=20
our application of Texas Civil Practice and Remedies Code sections =
74.351=20
and 74.401 creates a dual standard in our courts, whereby an =
individual=20
cannot be an expert for the purposes of an expert report unless =
he is a=20
physician, but for the same individual to testify at trial the =
court=20
could conduct the more permissive Daubert/Robinson test. =
See=20
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); =
E.I. du=20
Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 =
(Tex.=20
1995). =20
If the=20
court is capable of being the gate-keeper at trial, the same =
latitude=20
should be allotted the court in analysis of the expert =
report.
The=20
Legislature drafted Texas Civil Practice and Remedies Code =
sections 74.351=20
and 74.401 with an eye toward reducing the number of frivolous =
medical=20
malpractice lawsuits in Texas, but in so doing failed to consider =
many=20
possible scenarios where an expert who is not a physician might be =
qualified to opine as to the standard of care and/or causation in =
a case=20
pursued against a physician.
Accordingly,=20
while concurring in the disposition of this case under the current =
law, I=20
believe the application of the law to all fact-scenarios is =
problematic=20
and can lead to the miscarriage of justice in some =
instances.
_____________________________
Frank C. =
Price
Senior =
Justice
Judgment rendered and =
Memorandum=20
Opinion filed January 22, 2008.
Panel consists of =
Chief Justice=20
Hedges, Justices Guzman and Price.
Senior Justice Frank C. Price =
sitting by=20
=
assignment. |